Obligation to bear the costs for regular training events according to Section 28 Paragraph 3 GenTSV?

The regulation in Section 28 (3) GenTSV not only results in the five-year continuing education requirement for project managers. In the future, the question of who is responsible for the costs of continuing education events will also have to be addressed. Such a training course at the TÜV costs approximately €970 (plus VAT) per person. Given the five-year cycle, this is a considerable sum for the project manager if they have to pay for their own training. For legally required continuing education events – in particular those pursuant to Section 28 (3) GenTSV – the new version of the GenTSV (2019) pursuant to Section 32 (2) GenTSV only results in the operator being obliged to reimburse the costs for the BBS, not for the project manager. The comprehensive new regulation in Section 28 GenTSV makes no statement on the assumption of costs for continuing education for project managers. The explanatory memorandums to the new GenTSV and the GenTG also do not contain any statements on this matter. The provisions of the Radiation Protection Act and the Radiation Protection Ordinance, which were used to amend the continuing training requirement, also provide no guidance. The provision in Section 55 (4) of the Federal Immission Control Act (BImSchG) in conjunction with Section 9 (5) of the Federal Immission Control Ordinance (BImSchV), which is comparable to the GenTSV, does contain a more specific provision regarding enabling the immission control officer to participate in training courses as an obligation of the operator of an immission control facility. However, the provision is more comparable to Section 32 (1) and (2) of the GenTSV, i.e., the provision for the BBS, so that no specific obligation of the operator to assume costs vis-à-vis the project manager can be derived from it. The position of the immission control officer or incident officer in an immission control facility corresponds to that of the BBS of a genetic engineering facility. The clear wording would likely preclude a corresponding application of Section 32 (2) of the GenTSV to the project manager. In the absence of any specific provisions under public law, an operator's obligation to cover costs towards the project manager could arise solely from the private law employment contract pursuant to Section 611a Paragraph 1 of the German Civil Code (BGB) (Section 27 of the Genetic Engineering Ordinance), if such an agreement has been made between the operator and the project manager. This is generally questionable because the other provisions of the Genetic Engineering Act (GenTG) and the Genetic Engineering Ordinance (GenTSV) oblige the operator to appoint expert personnel if they wish to operate a genetic engineering facility: For example, the operator of a genetic engineering facility is obliged to appoint expert personnel, i.e. a project manager and BBS, for their facility (Section 6 Paragraph 4 of the Genetic Engineering Act). This is one of the four statutory operator obligations. For the approval of a genetic engineering facility, it must also be ensured under Section 11 Paragraph 1 No. 2 of the Genetic Engineering Act that the project manager or BBS possess the expertise required for their tasks. Section 11 Paragraph 1 No. 2 of the Genetic Engineering Act is a prerequisite for licensing the operation of a genetic engineering facility and the performance of genetic engineering work. These closely related, specific operator obligations mean that the operator is obligated to employ only qualified personnel in their facility. Even if there is no explicit regulation regarding cost coverage, it can be deduced that maintaining the project manager's expertise is not only in the operator's business interest. Rather, it is the operator's legal obligation. In the future, the operator – and not the project manager – will be required to provide evidence of updating to the competent authority (Section 28 (3) Sentence 4 GenTSV (2019)). However, if proof of the project manager's expertise is a legal obligation of the operator, this also entails the obligation to bear the costs of the five-year training course. Because if all of their employees (BBS and project manager) are not properly trained, the operator would be risking the shutdown of the facility and committing an administrative offense, thus jeopardizing the continued existence of the genetic engineering facility and the continuation of genetic engineering work. In this respect, particularly with regard to the operator obligations under the GenTG, the legally binding continuing education requirement pursuant to Section 28 (3) GenTSV applies by way of a first-right conclusion that the operator is obligated to bear the costs of regular continuing education. This result can also be verified with regard to the obligation to wear lab coats. Here, too, one of the legal requirements for the operation of a genetic engineering facility is that employees in the laboratory must wear lab coats. While the coats are worn by the employees, the obligation to equip the laboratories with lab coats and to regularly care for them are undisputed operator obligations, meaning that the operator must provide the costs. From this, too, it can be concluded that the legally mandated continuing education requirement for project managers is not only in the interest of the operator as a potential employer, but is also one of their statutory obligations. However, it will likely be a long way before this insight becomes established in practice. Therefore, the final conclusion is: As long as the cost coverage issue has not been conclusively clarified either by law or the courts, from an employment law perspective, the project manager is advised to incorporate a supplementary agreement regarding cost coverage by the operator into the respective employment contract as a binding provision. Project managers currently entering into employment at a genetic engineering facility should agree on the cost coverage provision directly in the new employment contract. Project managers who are already employed should insist on an addendum to the existing employment contract. Only by establishing this in writing can the project manager be on the safe side for future training events.